The opinion of the court was delivered by: Mitchell, M.J.
George Anthony Ross has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis. For the reasons set forth below, the petition will be dismissed, and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.
Ross is presently incarcerate at State Correctional Institution Fayette servings a twenty-three and a half to forty-seven year sentence imposed following his conviction, by a jury, of third degree murder and firearms violations at Nos. CC 19970831 and 199703687 in the Court of Common Pleas of Allegheny County, Pennsylvania. This sentence was imposed on September 12, 2001.*fn1
An appeal was taken to the Superior Court in which the questions presented for review were:
1. Whether the trial court erred in ruling that Randy Erwin was unavailable and in admitting Randy Erwin's prior testimony?
2. Whether the trial court erred in refusing to permit Thomas Thorton to testify to impeach the testimony of Randy Erwin?
3. Whether trial counsel was ineffective for failing to introduce evidence of Randy Erwin's prior conviction for false reports to police?*fn2 On October 23, 2003, the Superior Court affirmed the judgment of conviction.*fn3 A petition for allowance of appeal was filed in which these same questions were presented for review.*fn4 On March 10, 2004, leave to appeal was denied.*fn5
On March 9, 2005, Ross filed a post-conviction petition.*fn6 Following an amendment of the petition and an evidentiary hearing, post-conviction relief was denied on August 7, 2007.*fn7 An appeal was taken to the Superior Court in which the issues presented were:
1. Whether the PCRA Court erred in denying relief when the trial court erred in instructing a juror before the verdict was recorded?
a. Whether the PCRA Court erred in denying relief when the trial court erred in communicating/instructing a single juror as opposed to the entire jury?
b. Whether the PCRA Court erred in denying relief when the trial court erred in communicating/instructing the juror as the nature of the communication dealt with the juror's analysis and determination of Appellant's guilt during the deliberation process?
2. Whether the PCRA Court erred in denying relief when Appellant was denied his constitutional right to be present during a critical state of the criminal trial?
3. Whether the PCRA Court erred in denying relief when trial counsel was ineffective for failing to object to Appellant's absence during the supplemental questioning and/or instruction in the judge's chambers?
4. Whether the PCRA Court erred in denying relief when trial counsel was ineffective for failing to object to trial court's questioning and/or instructing a juror during deliberation?
5. Whether the PCRA Court erred in denying relief when trial counsel was ineffective for failing to present crimen falsi of the Commonwealth's chief witness, Randy Erwin's conviction of False Reports to Law Enforcement conviction during the trial?*fn8 On January 6, 2009, the denial of post-conviction relief was affirmed.*fn9
A petitioner for allowance of appeal to the Pennsylvania Supreme Court was filed in which the sole question presented was
1. The Superior Court erred by failing to address petitioner's trial court err on the basis of structural defect arguments by incorrectly addressing under ineffective assistance of counsel analysis.*fn10
On August 18, 2009, leave to appeal was denied.*fn11
In the instant petition which was executed on September 24, 2009, Ross contends he is entitled to relief on the following grounds:
1. Trial Court committed a structural defect by having an ex parte conversation with a juror and subsequently giving a private ...